TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, December 13, 2017

Paul Ryan: 'Twas The Night Before Taxmas

The House-Senate Tax Conference: A Byrd's Eye View

Ellen Aprill (Loyola-Los Angeles) and I have posted a primer on the Senate's Byrd Rule, focusing specifically on the requirement that provisions in a budget reconciliation bill must have more than a "merely incidental" effect on revenue. As we write:

The Byrd rule applies in the Senate to all measures that are passed through the budget reconciliation process, including to the House-Senate conference report. It is the source of the requirement — familiar to many in the tax world — that a bill passed through reconciliation cannot add to the deficit outside the budget window (which in this case is 10 years). It is also the source of a little-understood requirement that every provision in a reconciliation bill must produce revenue effects that are more than “merely incidental” to the non-budgetary consequences.

While the primary focus of news coverage and commentary on the Byrd rule in recent weeks has been on the deficit limitations, the Byrd rule’s “merely incidental” proviso is likely to play an increasingly important role as House and Senate negotiators hash out a conference report. The intricacies of the Byrd rule may determine the fate of provisions affecting the political activities of charitable organizations, the tax treatment of confidential sexual harassment settlements like the ones used by Harvey Weinstein, and many more. And if the conference report runs afoul of the Byrd rule, that could delay passage of the final bill until early 2018.

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December 13, 2017 in Daniel Hemel, Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

How Prestige And Rankings Can Help Law Schools Avoid The Same Fate As The 12% Of Dental Schools That Closed In 1986-1997

Dental SchoolFollowing up on my previous posts:

Eric A. Chiappinelli (Texas Tech), Like Pulling Teeth: How Dental Education's Crisis Shows the Way Forward for Law Schools, 48 Seton Hall L. Rev. 1 (2017) 

Nearly all observers of the current law school crisis treat legal education as a unique discipline. In their view, legal education as a whole, and individual law schools, have nothing to learn from outsiders that would be useful in reacting to, or thriving in the face of, the radical changes in legal education that have resulted from the collapse of the admissions market.

I take an entirely different approach. I believe legal education is not sui generis. In fact, another profession faced a similar crisis. Its schools’ admissions market collapsed because of a fundamental change in the profession itself. Twelve percent of those schools were closed. That profession was dentistry, and the lessons from its crisis are the way forward for legal education and for law schools.

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December 13, 2017 in Scholarship, Tax | Permalink | Comments (1)

The Top Law Schools For Tax

TaxTop Law Schools for Tax, Business, Banking and Corporate Law, preLaw (Fall 2017):

Tax law touches nearly every aspect of the law and is critical to the practice of corporate law, estate planning, business planning and property law. For lawyers with specialized knowledge of tax law, the ubiquity of state and federal tax codes presents the opportunity for a challenging and rewarding career. 

Many law schools offer advanced law degrees, or LL.M. degrees, in tax law, which can be extremely valuable to employers. But law students do not need to wait until after earning their J.D.s to pursue this practice area. A number of law schools offer concentrations, certificates, clinics and externships designed to prepare students to enter the profession with a solid understanding of tax law.

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December 13, 2017 in Legal Education, Tax | Permalink | Comments (1)

Justice Thomas Ventures Beyond Elite Schools To Fill Clerkship Posts

SCOTUS-Hiring-1-383x1024National Law Journal, Justice Thomas Ventures Beyond Elite Schools to Fill Clerkship Posts:

Justice Clarence Thomas has earned a reputation as a frequent dissenter during his 26 years on the U.S. Supreme Court bench, and when it comes to the clerks he hires, he also strays from the pack.

In a system where justices pull heavily from their own alma maters and a handful of other top schools to fill the coveted slots, Thomas casts the widest net.

He has hired from 23 different law schools since 2005, with one-third of his clerks coming from schools outside the Top 10 on the U.S. News and World Report rankings. The approach, he has said, enables him to find excellence “from all over.” ...

By contrast, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Anthony Kennedy have hired 10 percent or fewer of their clerks from law schools outside the U.S. News Top 10 since 2005.  The late Antonin Scalia hired just a single graduate from those nonelite schools during that period. ...

Over the past decade, Harvard and Yale have increased their dominance with graduates of the two law schools accounting for half of all Supreme Court law clerks. ...

Pepperdine is proud that our own Brittney Lane is clerking for Justice Thomas this term:

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December 13, 2017 in Legal Education | Permalink | Comments (3)

Professional Identity And Professionalism

Benjamin V. Madison III (Regent), Professional Identity and Professionalism:

This article discusses the difference between the professional identity formation movement in legal education and the older professionalism movement. Discusses approaches at different schools to derive values, methods to cultivate such values, and potential to help new lawyers have a strong internal sense of their ethical code, how to make decisions in the gray area (not governed by Model Rules), and satisfaction that could result from practicing in a manner that is consistent with one's internal values.

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December 13, 2017 in Legal Education | Permalink | Comments (0)

Tuesday, December 12, 2017

Thomas Presents Taxing The Gig Economy At Minnesota

Thomas (2017)Kathleen DeLaney Thomas (North Carolina) presented Taxing the Gig Economy, 166 U. Pa. L. Rev. ___ (2017), at Minnesota as part of its Perspectives on Taxation Lecture Series hosted by Kristin Hickman:

Millions of Americans now earn income through “gig” work, which allows them to set their own hours and choose which jobs to take. To the surprise of many gig workers, the tax law considers them to be “business owners” and subjects them to onerous recordkeeping and filing requirements along with the obligation to pay quarterly estimated taxes. Professor Thomas will discuss two possible reforms aimed at reducing the tax compliance burdens of gig workers while enhancing the government’s ability to collect tax revenue from them: a “non-employee withholding” regime that would allow online platform companies to withhold taxes for their workers without being classifed as employers; and a “standard business deduction” for gig workers that would eliminate the need for those workers to track and report business expenses.

December 12, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

The Limited License Legal Technician Is the Wave Of The Future In Law

ABA Journal, The Limited License Legal Technician Is the Way of the Future of Law:

[T]he Washington State Bar Association’s Limited License Legal Technician [LLLT] program [FAQ] ... is currently the only paraprofessional program of its kind, fully operational, within the United States. Many states offer court facilitators, but their offerings do not rise to the same level of independence as LLLTs. Unlike paralegals, the WSBA technicians operate on their own, without a supervising lawyer. At this time, LLLTs can help clients on family law matters only. However, the LLLT cannot represent people in court or negotiate — all communications must go through the client. With states consistently reporting that 80 percent of their citizens cannot afford an attorney for civil matters, plus the education gap as outlined here, the United States clearly has an access to justice problem. It’s a national crisis, and the LLLT approach is an important piece of the solution. ...

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December 12, 2017 | Permalink | Comments (1)

Soda Taxes As A Legal And Social Movement

David A. Dana (Northwestern) & Janice Nadler (Northwestern), Soda Taxes as a Legal and Social Movement:

In the last few years, several local governments have adopted new soda taxes. Other localities currently are considering adopting such a tax. In this Article, we consider whether soda taxes are becoming a more common local policy throughout the country — like local smoking restrictions — or whether, instead, they will remain a limited legal phenomenon. We focus on two potential obstacles to the widespread adoption of local soda taxes: (1) policy-based objections to the taxes as regressive and unduly paternalistic, which could undermine political support for their adoption at the local level; and (2) state preemption of local taxes, often achieved at the behest of the beverage industry.

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December 12, 2017 in Scholarship, Tax | Permalink | Comments (0)

Every Silver Lining Has A Cloud: Defensive Pessimism In Legal Education

Emily Zimmerman (Drexel) & Casey LaDuke (Virginia), Every Silver Lining Has a Cloud: Defensive Pessimism in Legal Education, 66 Cath. U.L. Rev. 823 (2017):

Defensive pessimism is a strategy that involves setting low expectations and reflecting extensively on what could go wrong in connection with a future event in order to manage anxiety and facilitate performance. Previous researchers have suggested that defensive pessimism may benefit law students academically. However, up until now, law students’ use of defensive pessimism has not been empirically studied. We investigated law students’ use of defensive pessimism and compared the use of defensive pessimism by law students, undergraduate students, and community members. Contrary to the suggestions of other scholars, we did not find statistically significant relationships between defensive pessimism and law school academic performance.

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December 12, 2017 in Legal Education | Permalink | Comments (0)

Congratulations To Pepperdine's Newly-Minted Lawyers

After having to cancel last week's bar swearing in ceremony due to the Southern California wildfires, we held the event last night at Smothers Theater on the Pepperdine campus.  I was honored to share the stage with our alumni director Jessie Fahy and three of our graduates who are judges:  Tricia Bigelow ('86), Second District Court of Appeal, Division Eight; Andre Birotte ('91), U.S. District Court for the Central District of California; and Julie Palafox ('83), Orange County Superior Court.

Bar 1

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December 12, 2017 in Legal Education | Permalink | Comments (0)

Purdue Prof: Academic Rigor Reinforces White Male Heterosexual Privilege And Should Be Replaced With 'Alternative Conceptualizations For Evaluating Knowledge'

Donna Riley (Purdue), Rigor/Us: Building Boundaries and Disciplining Diversity with Standards of Merit:

Rigor is the aspirational quality academics apply to disciplinary standards of quality. Rigor's particular role in engineering created conditions for its transfer and adaptation in the recently emergent discipline of engineering education research. ‘Rigorous engineering education research’ and the related ‘evidence-based’ research and practice movement in STEM education have resulted in a proliferation of boundary drawing exercises that mimic those in engineering disciplines, shaping the development of new knowledge and ‘improved’ practice in engineering education. Rigor accomplishes dirty deeds, however, serving three primary ends across engineering, engineering education, and engineering education research: disciplining, demarcating boundaries, and demonstrating white male heterosexual privilege.

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December 12, 2017 in Legal Education | Permalink | Comments (11)

Christmas Gifts For That Special Tax Person

Tax Adviser

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December 12, 2017 in Tax | Permalink | Comments (0)

Legal Scholars’ Ethical Responsibilities

Neil W. Hamilton (St. Thomas), Legal Scholars’ Ethical Responsibilities Concerning Neutrality and Objectivity, Candor and Exhaustiveness, 100 Marq. L. Rev. ___ (2017):

The specific topic of this essay is legal scholars’ ethical responsibilities concerning neutrality and objectivity, candor and exhaustiveness. These specific responsibilities are best understood in the context of ethical standards regarding scholarship for university faculty in general and then specifically for law faculty.

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December 12, 2017 in Legal Education | Permalink | Comments (0)

Monday, December 11, 2017

WSJ: Senate Tax Bill Contains 100% Marginal Rate For Some Business Owners

100%Wall Street Journal, The Taxman Cometh: Senate Bill’s Marginal Rates Could Top 100% for Some:

Some high-income business owners could face marginal tax rates exceeding 100% under the Senate’s tax bill, far beyond the listed rates in the Republican plan.

That means a business owner’s next $100 in earnings, under certain circumstances, would require paying more than $100 in additional federal and state taxes.

As lawmakers rush to write the final tax bill over the next week, they already are looking at changes to prevent this from happening. Broadly, House and Senate Republicans are trying to reconcile their bills, looking for ways to pay for eliminating the most contentious proposals. The formal House-Senate conference committee will meet on Wednesday, and GOP lawmakers may unveil an agreement by week’s end.

The possible marginal tax rate of more than 100% results from the combination of tax policies designed to provide benefits to businesses and families but then deny them to the richest people. As income climbs and those breaks phase out, each dollar of income faces regular tax rates and a hidden marginal rate on top of that, in the form of vanishing tax breaks. That structure, if maintained in a final law, would create some of the disincentives to working and to earning business profit that Republicans have long complained about, while opening lucrative avenues for tax avoidance.

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December 11, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (1)

Shaviro: 23% Pass-Through Rate Is 'Single Worst Proposal Ever Made In The History Of The Income Tax'

New York Times, Same Income, But Not Taxes, in GOP Plans:

In most places, a dollar is a dollar. But in the tax code envisioned by Republicans, the amount you make may be less important than how you make it. ...

[For] the first time since the United States adopted an income tax, a higher rate would be applied to employee wages and salaries than to income earned by proprietors, partnerships and closely held corporations.

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December 11, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Aprill: Leave The Johnson Amendment Alone

Following up on yesterday's post, Ellen P. Aprill (Loyola-L.A.), Amending the Johnson Amendment in the Age of Cheap Speech, 2018 U. Ill. L. Rev. Online ___:  New York Times op-ed:  Leave the Johnson Amendment Alone, by Ellen P. Aprill (Loyola-L.A.):

As the House and the Senate seek agreement on tax reform, they will have to decide the fate of the so-called Johnson amendment. This provision of the Internal Revenue Code prohibits tax-exempt charities from electioneering — that is, from becoming involved in any way in a candidate’s campaign for elected office. The tax reform bill passed by the House last month loosened this prohibition to the point where it would no longer prohibit much. The Senate’s tax reform bill made no change to current law.

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December 11, 2017 in Tax | Permalink | Comments (0)

SCOTUS Law Clerks Are Still Mostly White And Male

National Law Journal, Shut Out: SCOTUS Law Clerks Still Mostly White and Male:

According to a National Law Journal study, the U.S. Supreme Court’s clerk ranks are less diverse than law school graduates or law firm associates—and the justices aren’t doing much to change that.

A year as a U.S. Supreme Court law clerk is a priceless ticket to the upper echelons of the legal profession. Former clerks have their pick of top-tier job offers and can command $350,000 hiring bonuses at law firms. ...

[A]mid the luster of being a law clerk, there’s an uncomfortable reality: It is an elite club still dominated by white men. While some variables are outside the court’s control, few justices seem to be going out of their way to boost diversity.

Research conducted by The National Law Journal found that since 2005—when the Roberts court began—85 percent of all law clerks have been white. Only 20 of the 487 clerks hired by justices were African-American, and eight were Hispanic. Twice as many men as women gain entry, even though as of last year, more than half of all law students are female.

The numbers show near-glacial progress since 1998, when USA Today and this reporter undertook the first-ever demographic study of Supreme Court clerks, revealing that fewer than 1.8 percent of the clerks hired by the then-members of the court were African-American (now it is 4 percent,) and 1 percent were Hispanic (now the figure hovers at roughly 1.5 percent). The percentage of clerks who are of Asian descent has doubled from 4.5 percent then to nearly 9 percent since 2005. Then, women comprised one-fourth of the clerks; now they make up roughly a third. ...

Low numbers span the court’s ideological spectrum. Only 12 percent of the clerks hired by Justice Ruth Bader Ginsburg and Justice Clarence Thomas since 2005 were minorities. Ginsburg has hired only one African-American clerk since she joined the high court in 1993, and the same goes for Justice Samuel Alito Jr., who became a justice in 2006. ...


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December 11, 2017 in Legal Education | Permalink | Comments (1)

Lesson From The Tax Court: Using § 7502 To Beat The Statute Of Limitations

Note:  Due to my need to grade exams and turn in grades by January 2nd, this will be my last “Lesson From the Tax Court” post this year.  I plan to resume on January 8th.

Tax Court (2017)In law, “SOL” is an all too appropriate acronym for “Statute Of Limitations.”   Tax law is full of SOL traps for taxpayers.  A couple of weeks ago the Tax Court issued two opinions addressing a common SOL trap for taxpayers: the §6213 rule that taxpayers within the U.S. have 90 days from the date the IRS sends out a Notice of Deficiency (NOD) to petition the Tax Court for a redetermination of the deficiency.  Of course, we all know the period is really shorter than 90 days on the front end because the 90 days starts running on the day the IRS sends the NOD not the day the taxpayer opens the NOD after returning from vacation and says “OMG”!  

The reason §6213 is a trap is because the general rule for filing is the “physical delivery rule”: a petition is not filed until is had been physically received by the Tax Court’s Clerk’s office before the 90th day is over.  Tax Court Rule 22.  If that were the only rule, then taxpayers who cannot personally file their petitions by walking into the Tax Court Clerk’s office at 400 2nd St. S.W. in Washington D.C., would live in uncertainty about whether their mailed petitions would reach the Tax Court in time.

That’s where §7502 comes in.  It is true that if the Tax Court Clerk’s office receives a petition after the 90 period, that petition is late, but Tax Court Rule 22 provides that the Tax Court will pretend the petition is timely if the reason for the late delivery falls under “the circumstances under which timely mailed papers will be treated as having been timely filed, see Code section 7502.”  Section 7502 is one of those rescue rules you hope never to have to use, but if you need it, you really need to know how to make it work for you, to beat the SOL.

The cases of  Lincoln C. Pearson And Victoria K. Pearson v. Commissioner, 149 T.C. No. 40 (Nov. 29, 2017) (before Judge Lauber) and Matthew Eric Baham and Jennifer Michelle Baham v. Commissioner, T.C. Summ. Op. 2017-85 (Nov. 29, 2017) (before Judge Wherry) both teach a lesson in how the Tax Court interprets §7502 and how taxpayers can use that statute to turn a late-filed petition into a timely-filed petition.  Section 7502 is a pretty confusing statute and the Treasury regulations appear very strict.  These cases show the wiggle room in the regulations and give guidance on how taxpayers should approach using §7502.  I will explain §7502 and the interesting take-aways from these cases below the fold.

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December 11, 2017 in Bryan Camp, New Cases, Tax, Tax Practice And Procedure | Permalink | Comments (2)

Trailing Spouses Hurt Women Faculty Candidates' Job Prospects, Not Men

TwoLauren A. Rivera (Northwestern), When Two Bodies Are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, 82 Am. Sociological Rev. 1111 (2017):

Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.

Inside Higher Ed, But Will Her Husband Move? Study Suggests Women With Male Partners Face Bias in Searches for Junior Faculty Members:

Lauren A. Rivera, associate professor of management and organizations and of sociology at Northwestern University, ... observed all meetings of three search committees for junior faculty members in different disciplines at an unnamed but prestigious research university.

She found that search committee members considered “relationship status” when evaluating female candidates but not male candidates. And the underlying assumptions of this consideration hurt the female candidates. Search committees assumed that those with boyfriends or husbands might turn down the offer — even though they were considering candidates who had already been through a substantial portion of a search.

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December 11, 2017 in Legal Education | Permalink | Comments (1)

Johnson: Tax Policy For The Coming Bitter Hard Times

BookCalvin H. Johnson (Texas), Winter is Coming: Tax Policy for the Coming Bitter Hard Times, 157 Tax Notes 851 (Nov. 6, 2017) (reviewing Robert J. Gordon (Northwestern), The Rise and Fall of American Growth (Princeton University Press 2017)):

The United States has always defined itself in terms of great optimism and progress. For long periods, that self-definition was accurate. It no longer is. Robert J. Gordon’s magisterial economic history, The Rise and Fall of American Growth, describes 1870-1970 as the miracle century that improved the real standard of living tenfold. For the future, says Gordon, the United States faces an anemic growth rate of less than a third of a percent per year, and — even worse — only the richest tier will see growth.

For tax, the realistic expectations of slow future growth mean a high danger of collapse in our ability to run deficits or borrow money well within the decade. Federal creditors have been extraordinarily generous to the U.S. government, accepting interest below the expected rate of inflation. They have assumed that federal debt is risk free. If our creditors lose faith in our ability to repay debt, or believe that we will just pay it off with inflated paper, then the debt will no longer be treated as risk free. The loss of faith will probably not be just a squeeze but a collapse.

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December 11, 2017 in Book Club, Scholarship, Tax | Permalink | Comments (1)

TaxProf Blog Weekend Roundup

Sunday, December 10, 2017

Aprill: Amending The Johnson Amendment In The Age Of Cheap Speech

Ellen P. Aprill (Loyola-L.A.), Amending the Johnson Amendment in the Age of Cheap Speech, 2018 U. Ill. L. Rev. Online ___:

On November 2, 2017, the House Ways and Means Committee released its proposed tax reform legislation. It includes a provision amending the provision of the Internal Revenue Code, sometimes called the Johnson Amendment, that prohibits charities, including churches, from intervening in campaigns for elected office, at risk of loss of their exemption under section 501(c)(3). Under the Ways and Means proposal, as later revised and passed by the House, organizations exempt as charities under section 501(c)(3) would be permitted to engage in campaign intervention if “the preparation and presentation of such content . . . is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose and . . . results in the organization incurring not more than de minimis incremental expenses.”

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December 10, 2017 in Scholarship, Tax | Permalink | Comments (1)

Zelinsky: What the House-Senate Conference Committee Should Do About The Johnson Amendment

Edward A. Zelinsky (Cardozo), What the House-Senate Conference Committee should do about the Johnson Amendment:

The Johnson Amendment is the part of Internal Revenue Code Section 501(c)(3) which bans tax-exempt institutions from participating in political campaigns. The US House of Representatives has passed H.R.1, the Tax Cuts and Jobs Act, to revise the Code. Section 5201 of H.R. 1 would modify the Johnson Amendment. In contrast, the tax bill pending in the US Senate does not address the Johnson Amendment.

H.R. 1 gets three things right and wrong about the Johnson Amendment. The Conference Committee charged with reconciling the House and Senate tax bills should craft a true safe harbor from the Johnson Amendment limited to internal church communications. This safe harbor should protect internal church communications from government interference while keeping intact Section 501(c)(3)’s general prohibitions on the use of tax-exempt institutions (including churches) for political campaigning and legislative advocacy. ...

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December 10, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

NY Times: Blinded By Her Husband, Muslim Woman Aces Law School And Finds Success At DLA Piper

New York Times, Blinded by Her Husband, She Fights for Justice (and Aces Law School):

During the summer break from her graduate studies in Canada, Rumana Monzur returned home to Dhaka, the capital of Bangladesh, to tell her husband she wanted a divorce. He reacted with leaden silence.

But a few hours later, he strode into the room where she was working on her thesis, locked the door and pinned her down on the bed. Then he dug his fingers into her eyes, blinding her. He also bit off the tip of her nose, and tore flesh from her cheeks and her right arm.

“I won’t let you be someone else’s and I won’t let you study,” she recalled him saying as their terrified 5-year-old daughter tried to pull him off Ms. Monzur’s chest. “He told me in a hissing voice, ‘I wanted to kill you with acid, but good for you, I couldn’t find any.’”

In the days and weeks after, Ms. Monzur endured multiple surgeries and a smear campaign by her husband and his family, who tried to paint her as the aggressor in the attack. Refusing to stay silent, Ms. Monzur demanded justice from her hospital bed.

The savage assault and her outspoken defiance of female victimization made headlines in Bangladesh and Canada, galvanizing public support that prompted the Canadian government to allow Ms. Monzur to immigrate with her daughter and parents in 2011.

And here in Vancouver she again garnered attention in the news media, earning a master’s degree from the University of British Columbia in 2013. This year she graduated from the university’s law school. Today, she is studying for the bar exam while working at DLA Piper, a prominent law firm.

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December 10, 2017 in Legal Education | Permalink | Comments (2)

The Top Five New Tax Papers

SSRN LogoThere is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #3:

  1. [447 Downloads]  Background and Current Status of FATCA and CRS, by William Byrnes (Texas A&M)
  2. [393 Downloads]  The Senate Introduced a Pragmatic and Geopolitically Savvy Inbound Base Erosion Rule, by Itai Grinberg (Georgetown)
  3. [374 Downloads]  Tax Reform: Process Failures, Loopholes and Wealth Windfalls , by Stephen Shay (Harvard)
  4. [233 Downloads]  Once More, with Feeling: The 'Tax Cuts and Jobs' Act and the Original Intent of Subpart F, by Reuven Avi-Yonah (Michigan) & Nir Fishbien (S.J.D. 2018, Michigan)
  5. [169 Downloads]  Brigham Young vs. The Bureau of Internal Revenue, by Samuel Brunson (Loyola-Chicago)

December 10, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, December 9, 2017

This Week's Ten Most Popular TaxProf Blog Posts

George Washington Shrinks Incoming Class Size To Stop Rankings Slide

George Washington Law Logo (2016)George Washington Hatchet, Law School Shrinks Incoming Class Size to Stop Slide in Rankings:

The law school deliberately enrolled a smaller class this fall in an effort to keep the GPA and standardized test scores of its incoming class in the top-tier of law schools nationwide, the school’s dean told the Faculty Senate Friday.

Dean Blake Morant told faculty that the law school brought in about 9 percent fewer new students this fall as compared to years past. In total the school’s enrollment dropped by about 250 students compared to last fall, according to statistics from the Office of Institutional Research and Planning.

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December 9, 2017 in Conferences, Law School Rankings, Legal Education | Permalink | Comments (3)

Joint Tax Committee: Comparison Of The House And Senate Tax Bills

Joint Tax CommitteeJoint Committee on Taxation,  Comparison of the House- and Senate-Passed Versions of the Tax Cuts and Jobs Act (JCX-64-17) (Dec. 7, 2017) (51 pages):

This document ... compares the provisions of the House- and Senate-passed versions of the Tax Cuts and Jobs Act (“TCJA”).

Largely following the organization of the House bill, the document is divided into four sections, individual tax reform, business tax reform, taxation of foreign income and foreign persons, and exempt organizations. Within each section of the document, provisions of the legislation are divided into three categories: (1) provisions for which there are no differences between the House bill and the Senate amendment; (2) provisions for which there are differences between the House bill and the Senate amendment; and (3) provisions that are in only the House bill or the Senate amendment. Except for provisions that are only in the Senate amendment, within each category provisions are generally listed in the order in which they appear in the House bill.

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December 9, 2017 in Congressional News, Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Schmalbech: The AMT Has Metastasized. It Is Time To Rip It Out Of The Tax Code.

Wall Street Journal op-ed:  End the Alternative Minimum Tax, Don’t Mend It, by Richard Schmalbech (Duke):

There are many unfortunate provisions in the tax-reform bills recently passed by the House and Senate, but at least one good one: The House bill would repeal the Alternative Minimum Tax. The Senate bill, in an effort to find a little revenue, would preserve the AMT but somewhat reduce its bite.

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December 9, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Friday, December 8, 2017

Weekly SSRN Tax Article Review And Roundup: 12 Tax Profs Highlight Flaws Of GOP Tax Plan

This week, David Gamage (Indiana) discusses a new report, The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the New Legislation

Gamage (2019)The House and Senate Republicans’ tax bills are now headed to conference.  This may well turn out to be the most substantial new tax legislation since 1986. It threatens to be overwhelming to even list the ways in which these bills might transform important aspects of the U.S. economy. 

Given the massive scale and importance of this legislative effort, it is imperative that the new legislation be considered carefully and deliberately. Unfortunately, Republican leadership is currently rushing to meet a self-imposed deadline of passing this legislation before December 22nd.

I agree with some of the policy goals underlying these bills, and disagree with others. Yet whatever one thinks of these broad policy goals, draftsmanship is also important. Without careful drafting, tax law provisions can easily have numerous unintentional harmful effects.

Led by the primary drafters of Ari Glogower (Ohio State), David Kamin (NYU), Rebecca Kysar (Brooklyn), and Darien Shanske (UC-Davis), this new report explains some of the “games, roadblocks, and glitches” in these bills.  Nine other signatories also joined as signatories and secondary drafters of this report, and—full disclosure—I am one of these additional co-drafter/signatories.

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December 8, 2017 in Scholarship, Tax, Tax Policy in the Trump Administration, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Tax Profs:

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December 8, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Students From Elite Law Schools Vow to Combat Mental Health Suffering On Campuses, Students From Elite Law Schools Vow to Combat Mental Health Suffering on Campuses:

The student leaders from 13 of the nation’s top law schools have pledged to broaden mental health initiatives on their campuses and to fight the stigma of seeking treatment.

The pledge comes at a time that law schools nationwide have launched initiatives to address students’ mental health struggles, in the wake of several eye-popping studies showing the levels of anxiety, depression and substance abuse among both law students and practicing lawyers are far surpassing the general population. Read the pledge here.

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December 8, 2017 in Legal Education | Permalink | Comments (3)

The Most Underrated Law Schools In America

2018 U.S. News Law 2Following up on my previous posts:

The Seven Most Underrated Law Schools:

Christopher Ryan of Vanderbilt University and Bryan Frye of the University of Kentucky conducted the analysis that will appear in a forthcoming issue of the Alabama Law Review.

Their premise is simple: Judge the quality of law schools based on where the most qualified students go. These candidates have the most at stake and gather a huge amount of information, so you can gauge school quality based on their choices.

Compared to their position in the U.S. News rankings, seven law schools made significant gains and placed in the Top 50 of the country's 204 law schools.

The Most Undervalued Law Schools

Law School


US News Rank

Spots Gained













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George Mason




Rob Anderson asks whether a law school's LSAT and UGPA meadians are a leading indicator of its future U.S. News ranking:

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December 8, 2017 in Law School Rankings, Legal Education | Permalink | Comments (7)

Why the End of This Year Is the Worst Possible Time to Pass Tax Reform

Sam Wice, Why the End of This Year Is the Worst Possible Time to Pass Tax Reform, Yale J. on Reg.: Notice & Comment (2017):

Republicans hope to pass tax reform before Christmas so that they can go back to their constituents over the Winter Holidays and talk about their accomplishments.  However, because of the Pay-As-You-Go Act (PAYGO), passing tax reform at the end of the year would be the worst possible time to pass tax reform as it would lead to an immediate sequestration.

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December 8, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

Joe Bankman Co-Hosts Stanford Legal Radio Show On SiriusXM

BankmanPress Release, Stanford Legal To Launch on SiriusXM:

Stanford Law School announced today the launch of Stanford Legal, a new bi-weekly show that will get to the core of some of the legal issues making headlines today. Stanford Legal, part of SiriusXM’s programming arrangement with Stanford University, will premiere on SiriusXM Insight channel 121 starting Saturday, December 9, 2017 at 10:00 am ET.

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December 8, 2017 in Legal Education, Tax | Permalink | Comments (1)

Questions On California Bar Exam Line Up With Lawyer Jobs Data

California Bar ExamABA Journal, Questions on California Bar Exam Line Up With Lawyer Jobs Data, Study Finds:

The content of the California bar exam lines up with national surveys about skills expected for first-year lawyers, but a state-specific assessment would be helpful, according to a recent content validation study from the State Bar of California.

The report, sent to the California Supreme Court on Dec. 1, the report (PDF) follows earlier state bar cut score studiesand the court’s Oct. 18 announcement that the cut score would stay at 1440—for the time being—because it was not persuaded that changes should be made.

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December 8, 2017 in Legal Education | Permalink | Comments (0)

Thursday, December 7, 2017

Initial Fall 2018 Enrollment Projections Reflect Increases In Applicant Volume And Strength

Applicant Pool Projection – 61,000 to 63,000

With the first release of this admission cycle’s Current Volume Summary from the LSAC, we have the opportunity to compare the current applicant cycle data with that in prior years.

The good news reported by LSAC and posted here on TaxProf Blog by Paul Caron yesterday is that applicant volume is 15,083, up over 14% compared to this point in the cycle last year. The Current Volume Summary states that at this point in the cycle last year, applicants represented roughly 24% of the final applicant pool. (In past years, the applicant volume in the first Current Volume Summary has averaged roughly one-quarter of the total applicant volume for the given admissions cycle.) This means that, at the moment, as shown in the chart below, we can anticipate a total applicant pool for the year in a range from 61,000 to perhaps 63,000, depending upon exactly how things unfold over the coming months. Given that this is only the first of several data points, there remains a large margin of error. By mid-January, after a few more current volume reports, and with a larger percentage of the applicants accounted for, one can have a little more confidence in the estimate for total applicant volume.

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December 7, 2017 in Jerry Organ, Legal Education | Permalink | Comments (0)

Thompson: Taxing Trump And Curry Under The Republican Plan

Following up on my previous post, The Only Person Mentioned In The Republican Tax Bill Is ... Steph Curry:  Samuel C. Thompson, Jr. (Penn State), Taxing Trump and Curry under the Republican Plan, 157 Tax Notes 1149 (Nov. 20, 2017):

It looks like the Republicans will be successful in enacting the Tax Cut and Jobs Act (TCAJA). The House Republican version of the TCAJA would adopt a maximum 25% rate on certain business income of pass-through entities. In attempting to sell this provision, the House Republicans have compared Stephen Curry, a star professional basketball player, who would not qualify for the 25% rate, to Steve of “Steve’s Bike Shop,” who would be entitled to the 25% rate. Apparently, the House Republicans used Curry because he got into a fight with President Trump over Curry’s decision not to visit the White House in connection with a celebration of his team’s NBA championship. ...

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December 7, 2017 in Scholarship, Tax, Tax Policy in the Trump Administration | Permalink | Comments (0)

 'Holy Crap': Experts Find Tax Plan Riddled With Glitches

CrapPolitico, 'Holy Crap': Experts Find Tax Plan Riddled With Glitches:

Republicans’ tax-rewrite plans are riddled with bugs, loopholes and other potential problems that could plague lawmakers long after their legislation is signed into law.

Some of the provisions could be easily gamed, tax lawyers say. Their plans to cut taxes on “pass-through” businesses in particular could open broad avenues for tax avoidance.

Others would have unintended results, like a last-minute decision by the Senate to keep the alternative minimum tax, which was designed to make sure wealthy people and corporations don't escape taxes altogether. For many businesses, that would nullify the value of a hugely popular break for research and development expenses.

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December 7, 2017 in Congressional News, Tax, Tax Policy in the Trump Administration | Permalink | Comments (3)

Christina Rice Named Director Of BU Graduate Tax Program

Christina-RiceChristina Rice Appointed Director of BU Law’s Graduate Tax Program:

Christina Rice (JD’07, LLM’13) has been named the director of Boston University School of Law’s Graduate Tax Program. She has served as a teaching assistant and then as a member of the adjunct faculty teaching tax accounting courses in the Graduate Tax Program since completing her LLM in Taxation in 2013.

As a JD student at BU Law, Rice discovered her passion for tax law after taking Federal Income Tax with Professor David Walker and Trusts & Estates with Professor Fran Miller. After graduation, she began her legal career in the business law group at Foley Hoag LLP focusing on venture capital financing just as the venture capital markets began to collapse. She received her undergraduate degree in theater education from Emerson College with a minor in broadcast journalism.

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December 7, 2017 in Legal Education, Tax | Permalink | Comments (0)

The Richest 1% Now Own 40% Of The Country’s Wealth

Washington Post, The Richest 1 Percent Now Owns More of the Country’s Wealth Than at Any Time in the Past 50 Years:

The wealthiest 1 percent of American households own 40 percent of the country's wealth, according to a new paper by economist Edward N. Wolff [Household Wealth Trends in the United States, 1962 to 2016: Has Middle Class Wealth Recovered?]. That share is higher than it has been at any point since at least 1962, according to Wolff's data, which comes from the federal Survey of Consumer Finances.

From 2013, the share of wealth owned by the 1 percent shot up by nearly three percentage points. Wealth owned by the bottom 90 percent, meanwhile, fell over the same period. Today, the top 1 percent of households own more wealth than the bottom 90 percent combined. That gap, between the ultrawealthy and everyone else, has only become wider in the past several decades.

WaPo 1

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December 7, 2017 in Tax | Permalink | Comments (8)

Lawyering In The Nation's Capital

LNCNancy Hunt is the director of our unique Washington, D.C. externship program located at Pepperdine's property four blocks from The White House at 2011 Pennsylvania Avenue (more here):

The Washington, DC, Externship Semester offers students the practical experience of working full-time in a legal capacity for the government, non-profits, or other related entities, while completing coursework, networking for post-graduate employment, and experiencing the legal and cultural environment of our nation's vibrant and exciting capital. Classes take place and limited housing is available on the graduate floor of the University's Washington, DC, building, located in the heart of DC just four blocks from the White House.

Nancy has literally written the book on Lawyering in the Nation's Capital (West 2017):

Lawyering in the Nation’s Capital examines legislative process, congressional oversight, administrative law, executive power, statutory interpretation, judicial review of agency action, and the work and impact of Washington, D.C., attorneys working in government, lobbying, law firms, and nonprofits. In undertaking this survey, this text analyzes the sources of authority for those attorney functions and discusses the power struggle between the branches and, at times, between the offices within a single branch. This text further uncovers some of the more complex issues about how our federal government operates and asks thought-provoking questions about the outer limits of the power of each of the branches. It is ideal for companion courses for Washington, D.C., legal externship programs or for survey courses regarding government lawyers. The text is likewise a powerful reference book that clearly and succinctly explains complicated procedures, legal issues, and conflicts arising in and among the branches of government and within the private sector.

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December 7, 2017 in Book Club, Legal Education | Permalink | Comments (1)

How A Solo Tax Lawyer Paid Off $150,000 In Student Loans In 7 Years Without BigLaw

Above the Law, How A Solo Tax Lawyer Paid Off $150,000 In Student Loans In 7 Years Without Biglaw:

I want to share an interview I had with a solo tax attorney who was able to pay off his student loans from undergrad, law school, and a tax LL.M. degree within seven years even though he did not anticipate being a solo for long. This interview will be divided into two parts.

When did you finish school and how much did you owe then?

I finished school in 2008 and I think I owed about $150,000. My federal loans were consolidated at 2% while my private loans were on a variable interest rate which were between 4-7%.

Which schools did you attend?

I went to a relatively low-ranked law school. Then I got a Tax LL.M. at one of the schools on this list.

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December 7, 2017 in Legal Education, Tax | Permalink | Comments (2)

Wildfires, The Bar Exam, And Pepperdine

Yet another reason why I love Pepperdine Law:  due to the raging SoCal wildfires [NY Times, California Fires Enter The Heart Of Los Angeles], we had to cancel last night's swearing in ceremony and reschedule it for Monday. But we gave our grads the option of getting sworn in if they had family in town for the ceremony or needed to be sworn in early for work-related reasons.

Bar Collage

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December 7, 2017 in Legal Education | Permalink | Comments (0)

Wednesday, December 6, 2017

Fall 2018 Law School Admissions Season Opens With A Bang: Applicants Are Up 14.2%

From LSAC:

As of 11/24/17, there are 81,877 applications submitted by 15,083 applicants for the 2018–2019 academic year. Applicants are up 14.2% and applications are up 17.1% from 2017–2018. Last year at this time, we had 24% of the preliminary final applicant count.


This follows a surge in LSAT test-takers this cycle (19.8% in June and 10.7% in Sept/Oct).  Moreover, December LSAT registrants are up 26.4%.

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December 6, 2017 in Legal Education | Permalink | Comments (6)

Gergen Presents A Securities Tax And The Problems Of Taxing Global Capital Today At Penn

Gergen (2017)Mark P. Gergen (UC-Berkeley) presents A Securities Tax and the Problems of Taxing Global Capital at Pennsylvania today as part of its Tax Policy Workshop Series:

An earlier paper by the same author [How to Tax Capital, 70 Tax L. Rev. 1 (2016)] proposed a new approach to taxing capital that is owned by U.S. households and nonprofits. The cornerstone of the new approach would be a flat annual tax on the market value of U.S. publicly traded securities. A security issuer would remit the tax based on the market value of its securities and would receive a credit for U.S. publicly traded securities it holds. Income producing capital that is not subject to the securities tax, such as an interest in a closely held business or an interest in a private equity fund, would be covered by a complementary tax that would be at the same rate as the securities tax. The securities tax and the complementary tax are intended to replace the entire existing patchwork system for taxing capital income in the U.S., and would eliminate many of the distortionary features of the existing U.S. system, including the realization requirement, the distinction between debt and equity, and the double-taxation of corporate income.

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December 6, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

WSJ:  Law Schools Say: Please Come, No LSAT Required

LSATGREFollowing up on my previous posts (links below):  Wall Street Journal, Law Schools Say: Please Come, No LSAT Required:

This year, you can get into a top law school without taking the LSAT.

Some of the nation’s law schools — including at Harvard and Georgetown — are letting applicants take the Graduate Record Examination instead of the Law School Admission Test. The schools say they are changing in part to attract students from a wider variety of backgrounds, particularly with science, engineering and math experience.

Both tests, of course, are tough, but the LSAT holds a particular place as a grueling rite of passage. The GRE relies more on knowledge that can be memorized, as college-entrance tests do, than the skills-based LSAT that test-prep instructors say is like learning how to play a sport or instrument.

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December 6, 2017 in Legal Education | Permalink | Comments (0)

Chemerinsky Backs Out Of Investment In L.A. Weekly

LACFollowing up on Monday's post, Chemerinsky To Buy Stake In L.A. Weekly:  OC Weekly, Erwin Chemerinsky Is No Longer Investing In Semanal Media Group, LA Weekly's New Owner:

UC Berkeley Law School Dean Erwin Chemerinsky emailed the Weekly today at 4:54 pm saying he will no longer be investing in Semanal Media Group, the company which now owns LA Weekly.

After we unveiled the fact LA Weekly is now owned by mostly Republican donors, many people online were questioning why the hell Chemerinsky would be willing to invest. ...

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December 6, 2017 in Legal Education | Permalink | Comments (0)